Whether sewerage undertakers under the Water Industry Act 1991 have the statutory right to discharge surface water and treated effluent from their sewers into streams and private watercourses

Before Lord Neuberger (President), Lord Clarke, Lord Sumption, Lord Hughes and Lord Toulson, judgment was handed down in the case of the Manchester Ship Canal Company Ltd & Anor v United Utilities Water Plc, [2014] UKSC 40 on 2nd July 2014.

The appeal raised two questions in relation to the statutory right of sewerage undertakers to discharge surface water and treated effluent from their sewers into streams and private watercourses:

1. Whether sewerage undertakers have such a right in relation to all their sewers, irrespective of when they came into use – i.e. existing and future sewers2. If the answer to the first question is no, whether sewerage undertakers have such a right in relation to any of their sewers, and, if so, whether it is those which were in use immediately before (i) the transfers effected pursuant to the Water Act 1989 ("the 1989 Act") or (ii) the coming into force of the Water Industry Act 1991 ("the 1991 Act").

The first question

The argument for the sewerage undertakers was that a general right to discharge into private watercourses should be implied into the Water Industry Act 1991 from the power conferred on an undertaker by s 159 to lay pipes across private land "for the purpose of carrying out its functions", together with the definition of those functions in s 94.

Their Lordships referenced the Court of Appeal in British Waterways Board v Severn Trent Water Ltd, [2002] Ch 25, where it was held that the Water Industry Act had to be construed as a coherent scheme in its own right, without any a priori assumption that it was intended to reproduce everything in the previous statute law. Following British Waterways their Lordships found that a general right of discharge was not found under s 159.

The second question

No right to discharge from public sewers into private watercourses has ever been expressly conferred by statute. In Durrant v Branksome Urban District Council, [1897] 2 Ch 291, the Court of Appeal held that a right to discharge surface water and treated effluent into private watercourses was conferred by implication on local authorities by the Public Health Act 1875. S 17 of the 1875 Act stated that "[n]othing in" the Act "authorise[s]" the use of sewers constructed under the Act "for the purpose of conveying sewage or filthy water into any natural stream or watercourse … until such sewage or filthy water is freed from all … foul or noxious matter". By restricting the right to discharge foul water into any watercourse s 75 recognised by implication the existence of a right to discharge treated effluent and surface water.

All of the features of the Public Health Act 1875 on which the Court of Appeal relied in Durrant's Case were reproduced in the Public Health Act 1936, which replaced the earlier Act and continued to govern the sewerage powers of local authorities and then of the regional water authorities and privatised sewerage undertakings until 1991.

The court found that when the Water Industry Act 1991 imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses, at the same time applied to them the statutory restrictions in s 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers.

The court found that the inference was that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived. The sewerage undertakers have a statutory right and did not commit the tort of trespass by the continued use of the public sewers which they inherited.

Appeal allowed. Subject to s 117(5) of the Water Industry Act 1991, the Appellants are entitled to discharge into the Respondents' canals from any sewer outfall which was in use on or before 1 December 1991.

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